Author: Tim Baxter

Journal articles and reviews

Tim Baxter, ‘The Slow Death of Past Damage as an Essential Element in Negligence’ (forthcoming) Tort Law Review.

Since the re-casting of negligence in Donoghue v Stevenson, high authority in Anglo-common law jurisdictions has described past damage as a fundamental requirement in a successful claim for negligence driven by the judgement in Wagon Mound [No 1]. But the status of this once essential element is weaker than it has previously been understood. The recent judgement of Federal Court in Plaintiff S99/2016 v Minister for Immigration and Border Protection has seen the proposition come undone. Negligence is realising its full potential, modelled here for the first time. The exceptions to the rule that a claim in negligence needs past damage are considered and some consequences of the new pathway to a remedy through negligence are described. The advent of this new remedy for an old tort requires a rethinking of the tort as a whole.

ABSTRACT: This paper traces the tumultuous decade of Australian climate politics from 2007 to 2016 when climate change policy emerged as a defining issue in Australian politics. It focuses on the interplay, that we believe is unique, or at least uniquely powerful, between Australian climate policy and the perceived legitimacy of its political leaders. This interplay has seen the Prime Ministership change five times in ten years with climate change being a key determinant in the rise, fall, or rise and fall of each of their careers. The paper also engages strongly with the raw political math of a period where Australia’s houses of parliament were nearly as often opposed on climate policy as they were in sync.

ABSTRACT: Since the repeal of Australia’s carbon pricing mechanism in 2014, the Emissions Reduction Fund (‘ERF’) has formed the ‘centrepiece’ of Commonwealth action on climate change. Criticised in some quarters, the ERF nonetheless has the potential to be a powerful weapon to remove the low hanging fruit of Australia’s greenhouse gas emissions. However, its structure has become an example of slippage between a strong enabling Act and far weaker delegated legislation undermining the intent of the original legislation. This article uncovers structural deficiencies in the methodology for landfill gas capture and destruction such as stretching the term ‘additional’ to include its opposite, and raises other, more general issues with the ERF including the insufficiently accountable independent audit and review process. These deficiencies have obvious impacts upon the transparency and legitimacy of funding these projects under the ERF. Important questions are raised about whether substantial public revenue should be spent in this area. Given these methods are included in Australia’s emissions reduction calculations, a spectre of doubt is cast over whether Australia is actually achieving its domestic and international emissions reduction goals.

In mid-2015, news of Urgenda Foundation’s (Urgenda) purported success in holding the Dutch Government accountable for climate negligence travelled around the world. The case spawned renewed interest in climate litigation and has led to climate negligence cases being run or planned in many other countries. In Anglo-Australian jurisdictions, a direct analogue to the case — where the government is held to account in negligence — was largely dismissed as unworkable at the earliest stages. This was premature. Despite being on opposite sides of the civil/common law divide, the cross-pollination and convergent evolution of the Dutch and Anglo-Australian legal systems mean that the logic of the claim transfers well to the Anglo-Australian context using existing, but underused, Australian laws.

… [K]nowing the difference between quarterly and annual figures, and raw and adjusted data – and knowing what’s ultimately the most important metric – is crucial to understanding Australia’s emissions. And it might come in handy next time you’re listening to a politician discussing our progress (or lack thereof) towards tackling climate change.

Broadly, carbon credits work as a certificate permitting someone to emit greenhouse gases. To assess Australia’s performance, it’s important to understand the differences between the types of certificate.Just because we can count something as climate performance does not mean we should. Both approaches from the two major parties have their own issues, but that does not mean they are equal.

The Coalition government has today released its climate policy for the upcoming election.
Not much could have been expected from the government given that the prime minister has only been in the role six months, and not much was delivered.
There is not a lot of detail around the total package, the $3.5bn cash splash. What we have is enough to make clear that this is not the climate policy solution that the government thinks it is.

While there’s a good argument for rewarding ecologically responsibly companies, that is not actually the point of the ERF. To state the obvious, we should not be paying to maintain the status quo, and then claim to be reducing emissions.
The Climate Change Authority has unfortunately not taken the opportunity to address these underlying problems, or the potential for similar issues in future legislation.
More immediately, we must take the government’s claim to have abated 189 million tonnes of emissions with a hefty grain of salt. The reality is that the scheme’s effect on Australia’s total emissions is considerably smaller.

ERF expert Tim Baxter, a fellow of Melbourne Law School and associate of the Climate and Energy College, said the potential inclusion of coal-fired power stations was worrying.
“We’re asking whether a scheme, designed purportedly to reduce Australia’s emissions, should be funding some of the most polluting sources of electricity generation in the country,” he said.
“This is an insane question to ask.”

Commenting on the ABC’s analysis, climate and law expert Tim Baxter from the University of Melbourne said the fund did look like it had stalled.
“The cumulative abatement has stayed relatively static over the last couple of auctions,” he said.
“It seems to be puttering out a little bit.”
[…]
Those numbers are likely to rise, according to Dr Baxter [sic], since it takes time for contracts to be cancelled. So far, none have been cancelled from the last three auctions.
Dr Baxter said it was not clear yet whether we would see the same level of contract failure in more recent auctions, or whether there was a large number of bad contracts signed in those early rounds.
“It could be that this is just the background extinction rate,” Dr Baxter said. “That over a few years, we do lose 10 per cent or so.”

Tim Baxter, fellow at Melbourne Law School and Associate at the Climate and Energy College, said Victoria would eventually meet its target, assuming a linear trajectory, but would not reach zero-net emissions until about 2062.
He said the suggested targets within the report were not quite enough to reach the 1.5C commitment, but were a great start.
Victoria’s biggest cause of greenhouse gas emissions come from the energy sector, with electricity generation accounting for almost half of the states emissions.
But Mr Baxter said Australia, and Victoria, has huge potential to reduce emissions because of the amount of resources it has, from sun, to wind and minerals.
[…]
“We have all of these great opportunities on one side of the coin and if we dont realise that potential, the other side is terrifying. Its all well and good to be hopeful and push for these opportunities but at the end of the day, the impact on Victoria -on bushfire, drought, rainfall – are all just not worth going down that path.
[Continues …]

Our emissions are up and they’re expected to continue going up. On the other hand, our Paris target is not especially strong either. It doesn’t require much more than a stabilisation of our emissions due to some various fudging of numbers by the government.

“It’s barely a drop,” Tim Baxter, of the Climate and Energy College at Melbourne University, said.
On the annual figures, which are up, Baxter said: “2018 was higher than 2017. 2017 was higher than 2016. This is the wrong way. We’re going in the wrong direction to meet our Paris commitments, let alone deal with climate change.”

Tim Baxter of the Climate and Energy College at Melbourne University, said although Morrison’s new ministry was only sworn in last week, he did not believe that should have led to a delay.
“I don’t really think that’s a decent excuse under the circumstances because it’s not like the report has to be written. It has to be read,” he said.
“Taylor, while he hasn’t been emissions reduction minister for long, has been energy minister and he has seen these reports.”
Baxter said much of the information that was in the report was the same as previous quarters, it was just the headline figures that changed.
“This is a pretty unambiguous Senate order. It’s not something he gets to choose …he’s the minister and it’s his job,” he said.

Tim Baxter, a lecturer at the University of Melbourne, said it was not surprising 2018 showed an increase in annual emissions since “there’s no meaningful policy to reduce them”.
He added that with fugitive emissions increasing rapidly in particular “there’s no reason to think” 2019’s emissions won’t make it five years in a row of rising pollution.

STEPHANIE MARCH, PRESENTER: And there are questions about some of the projects covered by the Emissions Reductions Fund.TIM BAXTER, CLIMATE & ENERGY COLLEGE, MELB UNI: The three largest type of projects are, human-induced regeneration which is planting trees, avoided deforestation, which is paying landholders not to clear their land when they already have a clearing permit, and the third being the landfill gas sector.
SM: At this landfill near Canberra the waste company Veolia is getting paid through the fund to use methane from this garbage to generate electricity. It sells that power to the grid. The company admits it doesn’t need the taxpayer money for it to be viable.
BEN SULLIVAN , VEOLIA: So it’s a component of the investment, but it’s not the underlying reason for the investment.
SM: If the Emissions Reduction Fund vanished tomorrow, would you still keep doing what you’re doing?
BS: We would.
SM: Activities like this have been called ‘anyway projects’ – they would happen anyway, without the taxpayer funding.TB: The question is: How much more money do they deserve to keep doing this? There’s no sign that the project is going to collapse without government funding. It’s already quite commercially viable. Certainly if we throw money at all of our sectors in Australia, at the scale that we’ve thrown it at the landfill sector, it’s going to cost a lot to start to reduce our emissions and take our Paris targets seriously.

Tim Baxter from the Australian-German Climate and Energy College and Melbourne Law School said the overhaul meant the safeguard mechanism was now “totally useless”.“As small as the penalties were in the first year of the safeguard mechanism, and they were tiny for companies as large as those covered by the safeguard mechanism, this reform seems to be designed to ensure penalties never happen again,” Baxter said.
“By moving to baselines that vary with production, it becomes more and more difficult for facilities to breach their limits”.
“The safeguard mechanism moves from being next to useless in providing for a safe climate, to being totally useless”.
“Under the previous default rules, while there was nothing compelling emissions to come down, there was at least a limit on their growth. Under the revised rules, there is neither”.

Having seen the policy and watched Morrison’s misrepresentations of climate reality in media interviews, Tim Baxter, a fellow of the Law School and associate of the Climate and Energy College at Melbourne University, doesn’t see Australia cantering towards its climate goals. He sees a gallop. The “Gish gallop”.[…]As Baxter explains: “It’s a term for when you throw out copious amounts of half-truths and baseless claims in rapid succession, knowing your opponent cannot rebut each one in the available time. It’s based on the premise that it takes vastly more effort to debunk nonsense than it takes to put it out in the first place.”Morrison and other members of the government – notably Energy Minister Angus Taylor, who Baxter holds to be an even worse abuser of the truth than Morrison – have Gish-galloped through the past week.

“Lots of those [landfill-to-gas] projects existed for 10 years before they got any ERF funding, and they weren’t in any danger of collapsing,” Mr Baxter said.
“They’re very commercially successful partially because they get paid the price of electricity under their connection to the grid, they get paid in renewable energy certificates, and they get paid from the Emissions Reduction Fund.”
In other projects, a landholder with a permit to clear an area of forest may instead be paid to keep those trees in the ground.
[…]
“For most [permit buyback] projects, there’s about five years between when the land-clearing permit was issued and when they registered for the Emissions Reduction Fund,” Mr Baxter said.
“During that time, the landholder hasn’t cleared their land. So you’ve got to ask the question, were [they] really planning to clear their land or had they changed their plans in the intervening years?”

Melbourne University climate law expert Tim Baxter has anaylsed the historical data and the projections and doesn’t believe Australia’s current policies are enough.“It’s simple really, emissions should be going down, they have to be going down for us to meet our Paris Agreement targets and they’ve been going up for years.”…Despite being pessimistic about the projections, Tim Baxter said there’s no reason why Australia can’t become an industry leader in climate change abatement technology.“We’re blessed with all these opportunities to reduce our emissions and we’re just wasting time at the moment and its time we don’t have if we want to get to a safe climate,” he said.

Tim Baxter, an associate with the Australian-German Climate and Energy College, said a further issue with the payments to Rio Tinto is that the site was also covered by the safeguard mechanism, which is meant to ensure industrial facilities do not increase their pollution above business-as-usual levels.…Baxter said in the case of companies both covered by the safeguard mechanism and registered under the emissions reduction fund, taxpayers ended up paying polluters to make cuts they were supposed to pay for themselves to meet their baselines. Rio Tinto’s Gove operation fell into this category.“In this situation, the fund is no longer delivering actual carbon reductions,” he said. “It’s literally paying people to do what they already had to do.”

But Melbourne University climate law expert Tim Baxter said the government was using an “accounting trick” to achieve its “weak” target.…“Our target is one of the weakest in the developed world,” Mr Baxter told SBS News.…Mr Baxter said that pollution was actually increasing, but the government plans to count “Kyoto credits” for overshooting its targets under the soon to be expired Kyoto Protocol.…However, Mr Baxter argued those sorts of changes could easily be funded by the private sector.…“A lot of stuff we’re paying for is for things that people are already doing. We’re paying for hot air,” he told SBS News.

Tim Baxter, a researcher at Melbourne University’s Australian-German Climate and Energy College, said the Morrison government was gambling that other nations will be wary of pressing Australia too hard when they too may be seeking shortcuts to meet their Paris goals.
“There are not any rules on this and there are unlikely to be any rules,” Mr Baxter said.
Still, “it certainly wasn’t the spirit” of Paris to accept carryovers from the Kyoto period, he said.

Tim Baxter, a researcher at Melbourne University’s Australian-German Climate and Energy College, said the average price per tonne – mostly for landfill gas and avoided deforestation projects – had generally been rising as the cheapest options were used up.
The eighth auction cost $13.87 per tonne of carbon abated, compared with about $12.50 on average.
Whatever the government offers with this new round of funding, it probably won’t be enough, Mr Baxter said.
“By the government’s own numbers, we are set to miss our Paris target by 695 million tonnes,” he said. “If the government plans to meet Paris with the ERF, they would have to spend upwards of $10 billion, and I can’t see that happening.”

Tim Baxter, a researcher at Australian-German Climate and Energy College and Melbourne Law School, said it was likely Australia would try to get international backing to use Kyoto credits – and it might succeed.
“Our negotiators have proven incredibly successful in the history of the UN [Framework Convention on Climate Change],” Mr Baxter said. “We play that game like a master. And while the international community is not keen on letting Kyoto credits into Paris, I have full confidence in our negotiators’ ability to squeeze them in.

Tim Baxter, a researcher at Melbourne University’s Australian-German Climate and Energy College, has closely examined the emissions reduction fund.
He said while it was one of the world’s strongest offsetting regimes, there was still “a huge problem with integrity under most methods” and “[taxpayers] don’t know how badly we are getting ripped off”.
“The government then uses those figures to say ‘look how much [carbon abatement] we’ve bought’, which is to some degree a furphy, and we are also reporting those under our Kyoto commitments … when in actual fact there are really serious questions about how much carbon is coming out,” he said.

Avoided deforestation projects, which have been signed up to deliver 26m tonnes and – based on the average $11.90 per tonne of carbon dioxide paid under the scheme – could receive more than $300m of public money, are more contentious. They rely on a counterfactual though – it is impossible to know if a landowner ever really intended to clear the land.Tim Baxter, a legal academic with the Australian-German Climate and Energy College, doubts many with government contracts did. He says some landowners had permits to clear their land for more than eight years before registering with the fund. At the other end of the scale, one project received a permit to clear just 49 days before registering. “Both raise serious questions,” he says.…According to Baxter, a glaring omission from the rules is the impact of climate change itself. Australia’s scientific agencies suggest that, under the goals of the Paris conference, western NSW is projected to be on average 2.3 degrees warmer and have 8% less rainfall by 2100, a shift that would make it more akin to outback Queensland. “The difference between the closed woodlands of Bourke and the open woodlands of its future is a loss of approximately half its foliage cover – and a commensurate loss of carbon stored in the forests,” Baxter says. “The law doesn’t deal with that.”

The University of Melbourne legal academic Tim Baxter, who has published peer-reviewed research revealing flaws in the fund, said the change was long overdue.He said several analyses had suggested many of the emissions reductions paid for from the fund were not genuine as they would have happened without spending more than $2bn of taxpayers’ money. Landfill gas was probably the worst example, he said.“There is no way that 191m tonnes of abatement is being kept in the ground or sequestered (as the government has claimed),” Baxter said. “Based on the design and accounting, we are either counting abatement that they were already doing or we’re counting emissions they were not going to be released anyway.”…Baxter said it was a transparent case of political expediency overruling good policy.“For the sake of being able to say ‘our scheme per tonne of emissions is cheaper than the previous government’s scheme’ you’re seeing essentially junk credits being created,” he said.“These projects are allowed into the fund to make the price cheaper based on a spurious argument that if we don’t provide credits that these worthwhile landfill gas projects would close. There is no evidence that any of these projects were at or near closure.”

The lack of climate funding “is really, really distressing”, Tim Baxter, a research associate at Melbourne University’s Climate and Energy College, said. “This isn’t the trajectory we need to be having right now – we need to be amping up, not winding down.…“To reach our Paris goals we’re going to need to see considerable investment elsewhere in the economy, ” Mr Baxter said. “This budget has done nothing to provide for that.”…“There are certain areas of our emissions that will be considerably more difficult to deal with, whether it’s fugitives or transport,” Mr Baxter said. “We don’t actually have a road map to getting to zero in those sectors of the economy.”

Tim Baxter, a researcher at Melbourne University’s Australian-German Climate and Energy College, described the report as “a light touch” that failed to address the many systemic problems with the fund.“Pretty much in every methodology you look at there’s some fundamental accountability issue,” Mr Baxter said. “This is almost big enough that 30, 40, 50 per cent of the abatement you’re claiming under this methodology doesn’t exist.”…By international standards, the ERF was “reasonably good” and had problems that could be fixed if governments were serious, Mr Baxter said.“There are loopholes there you can drive a truck through but they can be closed over time,” he said.

Tim Baxter, ‘Is there a future for negligence in Australian Climate Litigation?’ (Presentation given at Climate Justice Network Conference ‘Imagining a Different Future: Overcoming Barriers to Climate Justice’, 9th February 2018).

Tim Baxter, ‘Promoting Environmental Justice Through the Courts: Negligence-based claims against the State in Australia’ (Presentation given at 2017 Environmental Justice Conference, University of Sydney, 6th November 2017).

Tim Baxter, ‘Are Commonwealth Climate Targets Legally Negligent? An Australian Urgenda’ (Presentation given at the Australian-German Climate and Energy College, 22nd August 2016).

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I’m Tim Baxter, a Fellow of Melbourne Law School.

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